IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA

RSA No. 613 of 2005.

Reserved on : 11th June, 2019.

Decided on : 28th June, 2019.

Kamal Chand and others

…..Appellants/defendants.

Versus

Smt. Jagiro

....Respondent/Plaintiff.

Coram:

The Hon'ble Mr. Justice Sureshwar Thakur, Judge.

Whether approved for reporting?1 Yes.

For the Appellants: Mr. Dinesh Bhanot, Advocate. For the Respondent: Mr. Rakesh Thakur, Advocate.

Sureshwar Thakur, Judge.

The plaintiff, one Smt. Jagiro's suit, for rendition of a decree for permanent prohibitory injunction, and, for mandatory injunction, vis-a-vis, the suit khasra number, stood decreed, by the learned trial Court, and, in an appeal carried therefrom, before the learned first

<span id="page-0-0"></span>¹ Whether reporters of the local papers may be allowed to see the judgment?

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appellate Court, by the aggrieved defendants, and, also upon, cross-appeal No.30-NL/13 of 2004, preferred therebefore hence by the plaintiff, rather sequelled, a pronouncement, hence dismissing the defendants' appeal, and, allowing, of, the plaintiff's cross appeal, (a) wherethrough, in consonance with Ex.P-1 (site plan), the defendants were directed to provide, through, the, suit khasra numbers, hence, space for enabling water traveling, through, the kuhal onto the land, of the plaintiff, hence for facilitating the plaintiff's land, being irrigated. The defendants being aggrieved therefrom, hence, institute the instant appeal before this Court.

2. Briefly stated the facts of the case are that the subject matter of the present list is a permanent katchi kuhal crossing through the land bearing Khasra Nos. 1036/115, 1039/117, 1040/121, comprised in Khewat/Khatauni No.24 min/25 min, situated in the area of village Makhnu, Majra, Pargana Dharampur, Tehsil

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Nalagarh, District Solan, H.P. for irrigation of the land of the plaintiff comprised in Khewat/Khatauni Nos. 27/28, bearing Khasra No. 1031/93, 1038/117, 118 and 119 total measuring 5 bighas as shown with red ink in Annexure PA. The case of the plaintiff is that the plaintiff is resident and Khewatdar of village Mahnumajra, and, had installed one tube well shown at point T in annexure PA about 20 years ago in village Makhnu Majra, for providing irrigation water to the Khewatdars. The water from the tube well is distributed to all the landowners for irrigation of their respective lands. The Irrigation and Public Health Department has further constructed some small water distribution tank at point C and water from point C used to cross through permanent kutcha channel/drain to irrigate the lands of the adjoining owners. The water passes through the lands of Kali Ram, Amin Chand and defendants and then reaches to the land of the plaintiff for the last about 28 years. The plaintiff used to irrigate

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her land measuring 5 bighas comprised in Khata/Khatauni No. 27/28, for the last 28 years peacefully, continuously, openly and uninterruptedly through kutcha channel over the land of the defendants. The plaintiff has acquired easementary right by way of prescription to irrigate her land through kutcha channel/kuhal over the land of the defendants and the defendant shave no right to interrupt or cause hindrance in smooth running of the water through disputed channel. The plaintiff is also having right to enter upon the land of the defendants in order to repair or remove blockage in the channel. The defendants used to irrigate their aforesaid land through Kutcha Kuhal which is passing over the land of other villagers. The defendants disturbed the kutcha channel/kuhal over their land by way of ploughing and refused the plaintiff to use the irrigation water from the disputed channel illegally. Hence the suit.

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3. The defendants contested the suit and filed written statement to the plaint, wherein, they have taken preliminary objections, qua maintainability, cause of action, suppression of facts etc. On merits, the defendants averred that there was no kutcha kuhal through the land of the defendants for irrigation of land of the plaintiff. The Government of Himachal Pradesh had installed tube well about 8 years ago in village Makhnu Majra for irrigation to the Khewatdars of village Makhnu Majra but the Government of Himachal Pradesh had not prepared any plan for irrigation of the land of the inhabitants. There was no water channel for irrigation of the land nor the plaintiff had any right to pass channel of water from the fields of the defendants my making alignment of her own choice nor plaintiff had any right of easement. The water from tube well flowed to the fields of the inhabitants of the locality with the consent of the each other. The landowners were irrigating their fields

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per the season as licencees and the plaintiff cannot claim easementary right to irrigate her fields. The plaintiff being a relative of the defendants was allowed to irrigate suit land by taking water from one corner of the land upto her land purely as a concession. The plaintiff had no right to cross the water channel in the middle of the fields of the defendants. Khasra No.1031/93 measuring 1 bigha 03 biswas was far away from the land of defendants. The defendants themselves used to irrigate the aforesaid land through Kutcha channel/kuhal which was passing through the land of the other villager with their consent. The defendants had acquired right to irrigate their land per facility and water available and with the consent of the villagers. There is no easementary or customary right for getting the water through kutcha channel/kuhal for irrigating over the land of adjoining landowners.

4. On the pleadings of the parties, the learned trial Court struck the following issues inter-se the parties at contest:-

• 1. Whether there exists a water channel in the land of the defendants? OPP
• 2. Whether the plaintiff is having right to irrigate his fields from the water channel existing in the fields of the plaintiff by way of custom or by way of easement?OPP
• 3. Whether the defendant is interfering with the flow of water in the water channel? OPP
• 4. Whether this suit is bad for non joinder of necessary parties? OPD
• 5. Whether the plaintiff has suppressed material facts from the court, if so its effect? OPD
• 6. Whether the suit is not maintainable in the present form?OPD.
• 6A. Whether the plaintiff has suffered loss to the tune of Rs.15,000/- due to the acts of the defendants? OPD.
• 7. Relief.

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5. On an appraisal of evidence, adduced before the learned trial Court, the learned trial Court decreed the suit of the plaintiff/respondent herein. The appeal, preferred therefrom, by, aggrieved defendants, before the learned First Appellate Court, as also, the crossappeal preferred therebefore, by the plaintiff, sequelled a pronouncement, hence dismissing the defendants' appeal, and, allowing, of, the plaintiff's cross-appeal.

6. Now the defendants/appellant(s) herein, have instituted the instant Regular Second Appeal, before, this Court, wherein, they assail the findings, recorded in its impugned judgment and decree, by the learned first Appellate Court. When the appeal came up for admission, on 12.1.2006, this Court, admitted the appeal instituted by the defendants/appellant(s) against the judgment and decree, rendered by the learned first Appellate Court, on, the hereinafter extracted substantial question of law:-

7. Whether in the facts and circumstances of the present case relief of permanent prohibitory injunction could be granted unless a declaration of the right to take water through the fields of the appellants/defendants was sought and granted by ld. Trial Court?

8. Whether the plaintiff was entitled to the entire damages when she is the owner to the extant of ½ land only?

9. Whether the judgment and decree of the learned appellate court is sustainable in view of the fact that the application under Order 41, Rule 27 of the CPC filed by the appellants remains undecided by the learned lower appellate court, if so the effect thereof?

10. Whether the jurisdiction of the civil courts is barred in view of the provisions of Section 54 of the H.P. Minor Canals Act, 1976 Act No.42 of 1976, if so its effect?

11. For the reasons to be assigned hereinafter, and, without meteing any answer to the afore substantial question of law, this Court proceeds, to, make an order of wholesale remand, vis-a-vis,l the learned trial Court, for

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its hence within six months hereafter, in compliance with the further directions enunciated hereinafter, rather making a fresh decision, upon, the apposite civil suit No. 291/1 of 2000. (a) The aggrieved defendants instituted an application bearing CMP No. 414 of 2012, within the instant RSA, (a) wherethrough, they seek leave of this Court, to adduce into evidence, copies of the revenue records, with articulations therein, vis-a-vis, the plaintiff, extantly not, being recorded as owner in possession of the suit land, (b) wheretowhich the defendants were directed, through a decree of mandatory injunction, hence, provide through their fields, water channels, hence for irrigating her land. The afore enunciations, if, credible, thereupon, it comprises, a, valuable piece(s) of evidence, (c) rather whereupon, the defendant may be entitled to make an espousal, before this Court, that, the decree impugned rather squarely appertaining, vis-a-vis, acquisition, of, easementary rights, before this Court,

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hence being in personam or in other words, only appertaining to the rights, and, entitlements, of one Jagiro, (d) thereupon, her alienees/assignees, not being entitled to receive, the benefit, of, the concurrently recorded judgments, and, decrees, by both the learned courts below, rather holding leanings, vis-a-vis, one Jagiro. Further corollary thereof, is that, when the afore documents appended, with the afore application, may be, just and essential, for the defendants hence making a meritworthy effort, to dislodge the concurrent findings, recorded by both the learned courts below, against them, thereupon, it is deemed fit to grant the espoused relief, to, the defendant.

8. Be that as it may, for the reasons to be assigned hereinafter, it would not be appropriate, merely, on anvil, of the afore leave being granted, vis-a-vis, the defendants, for, this Court, (a) also proceeding to, thereafter accept, the further submission made before

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this Court by their counsel, that hence, the verdicts recorded by both the learned courts below, wholly wanting in legal efficacy, and, hence after accepting, the instant appeal, the concurrently recorded verdicts against them, by both the learned courts below, rather being set aside. (b) Conspicuously, only, upon the attested copies of the relevant documents, being permitted to be placed on record, and, merely, upon, a presumption of truth, being, may be, enjoyed by them, hence their purportedly holding the requisite fullest probative vigour, or hence theirs being also per se admissible, and, exhibitable. (c) Emphatically, when all the afore endeavours, can be resorted to, only before the learned trial Court, and, obviously after an opportunity, to the counsel, for the litigants concerned, to adduce evidence, for rebutting the veracities or truth(s) thereof, (d) dehors reiteratedly even if assumingly, the documents in respect whereof, the espoused relief hence stands granted, to the

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aggrieved defendants/appellants, hence are, documents whereto, a, presumption, of, truth is attached. (e) Preeminently, also when solitarily upon the afore facet, it would be inappropriate, to conclude, that the extant regular second appeal being amenable, for it being allowed, (f) as reiteratedly prima faice at this stage, it cannot be straight way hence concluded, that, the verdicts recorded, vis-a-vis, one Jagiro, are, judgments in rem, or verdicts in personam nor it can be concluded, that, the alienees/ assignees/successors-in-interest, of one Jagiro, are not, entitled to the benefits, of the judgments, and, decrees recorded by both, the learned courts below, vis-a-vis, one Jagiro, (g) conspicuously, also when, without, the alienees/successor-ininterest/assignees of Jagiro or persons, who derive an interest from her, are neither strived to be impleaded, as legal contestants, in the apposite array of litigating parties, nor are permitted to be added, (h) whereas only

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upon theirs being added, they would hold, the fullest opportunity to contest the arguments raised, before this Court by the counsel, for, the aggrieved defendants/appellant, that, the verdict pronounced, vis-avis, Jagiro Devi/ rather bestowing benefits only upon her, and, not upon any of her successors-in-interest or any of her assignees, (i) emphatically also when, only upon, adding of assignees or persons, who through Jagiro hence purportedly derive any valid easementary right(s) from the judgments, and, decrees, pronounced qua Jagiro, may ultimately, upon, being added, in the array of legal contestants, (j) thereupon, may prevail, upon this Court that dehors the reflections existing in the documents, in respect whereof leave, is granted, they are yet entitled to derive benefits, of, the judgment and decree recorded, only vis-a-vis, Jagiro Devi. Consequently, for facilitating all the afore recoursings, it is deemed appropriate, to remand the lis, to enable it the learned trial Court, to

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allow, the exhibition therebefore of the afore documents, and, after an opportunity being granted, to the Jagiro, to adduce rebuttal evidence thereto. In case Jagiro is not holding any subsisting derivable interest, from, the concurrently recorded judgments, and, decrees, thereupon, it is open for the assignees, whereupon whom, derivation of the rights, as, encapsulated in the judgments and decrees, are ensuing, to through an application, being cast under the provisions of Order 1, Rule 10 CPC, seek their impleadment in the suit, (k) and, upon the afore apposite motion being, cast before the learned trial court, it shall proceed to make a decision thereon, in accordance with law, (j) and, thereafter, upon, an affirmative decision being recorded upon it, he may permit the newly added contestants concerned, to make amendment(s), in the apposite pleadings, and, thereafter if need, may strike any additional issue(s), and, shall permit adduction of evidence thereon.

9. Consequently, CMP No. 414 of 2012 is allowed, and, only for the afore reasons, the instant appeal is allowed, and, judgments impugned before this Court are set aside. The learned trial Court is directed to complete, the, afore mechanism, within, six months from today. The parties are directed to appear before the learned trial Court on 23rd July, 2019. All pending applications also stand disposed of.

28th June, 2019. Judge. (jai)

(Sureshwar Thakur)